This land is our land.
Russell Sadler
Newcomers to Oregon are often surprised by how passionate Oregonians can be about their public lands at a time when much of the political rhetoric is about “private property rights.” I suspect Oregonians cherish their public lands because politicians have been trying to steal them since statehood.
When Oregon became a state in 1859 the federal government gave the state government title to section 16 and 36 in every township and range. Proceeds from the sale of this land or the resources on it were constitutionally dedicated to the Common School Fund to finance public schools. The federal government also gave the state title to the beds and banks of the navigable waterways of the state as “common highways and forever free,” which the courts have interpreted to mean the Legislature cannot impose tolls to traverse its waterways.
It’s been a continuing battle to keep these lands public and access open. Here is an update on the current skirmish:
In 1997 lawmakers representing some of the people fortunate enough to live along Oregon’s rivers and streams tried to turn them into private preserves. Sen. Ted Ferrioli, R-John Day, sponsored a bill prohibited anchoring in rivers or walking on islands or banks. The bill charged boaters fees to buy stream side access Ferrioli’s bill denied them. A majority of lawmakers realized this sly giveaway of public access rights for what it was and Ferrioli’s bill died.
The Senator from John Day is back with SB 1028 this session. Although it appears to be “reasonable compromise,” Ferrioli’s new bill, upon close reading, reveals that it creates an easily-lobbied “advisory committee” to do between sessions what he cannot persuade the Legislature to do while it is in session and then charge non-motorized boaters fees to regain access rights the public already has. This sly bill contains an “emergency clause” carefully designed to prevent any challenge by referendum.
Experienced legislative observers think the bill has a chance in the Senate but will die in the House. But SB 1028 is only the latest firelight in a continuing saga.
Here is a concise history:
In 1911, Gov. Oswald West, a populist reformer, persuaded the Oregon Legislature to pass a bill declaring Oregon beaches a public highway. Up through the early 1900s the beach was the only way to travel between coastal communities without long detours inland. Oregonians became so accustomed to this open access they believed the public “owned” the beaches, including the dry sand above high tide.
A Cannon Beach motel owner challenged this folk wisdom in 1966. Bill Hay roped off a section of beach in front of his motel, excluding the public from his “private” beach. House Majority Leader Bob Smith, R-Burns tried to give away the public’s claim to the dry sand portions of Oregon’s beaches. Smith’s maneuvering rained a rare firestorm of public indignation on Salem. A wobbly Legislature produced a compromise plan that was immediately challenged in court.
The Oregon Supreme Court eventually ruled that unrestricted public use of beaches since aboriginal times granted the public a “prescriptive right” of access to the “dry sand” beaches above high tide line regardless of what title documents said. That 1967 decision still guarantees public use of Oregon’s beaches today.
In 1971, Rep. Smith, by now Speaker of the Oregon House, sponsored a bill surrendering public claims to the beds and banks of Oregon rivers and streams to the upland property owner. Sen. Betty Browne, D-Oakridge, insisted Smith’s bill gave away valuable public access and potential public revenue from gravel and other mineral deposits. A compromise bill ordered a study of conflicting claims of public and private ownership. The study took 15 years. It is not a simple issue.
The state’s title to the beds and banks of Oregon rivers flows with the river bed. When a river slowly erodes one bank and deposits gravel on the opposite bank, one property owners loses land, the other gains land and the state’s title moves with the river bed. Lawyers call this slow change an “accretion.” If the river cuts a new channel suddenly in a flood or storm -- what lawyers call an “avulsion” -- the state takes title to the new river bed. The state also retains title to the old river bed. The state’s Common School Fund is entitled to money from gravel deposits mined from the old river bed. These gravel deposits were among the public claims Smith’s bill tried to give away.
Now, once again, public access to public land and waterways is being challenged. Oregonians need to continue their vigilance over their public lands. The Legislature’s obsession with giving away public access is like the Energizer Bunny. It just keeps going and going and going...
 |
More Recent Posts | |
Albert Kaufman |
|
Guest Column |
|
Kari Chisholm |
|
Kari Chisholm |
Final pre-census estimate: Oregon's getting a sixth congressional seat |
Albert Kaufman |
Polluted by Money - How corporate cash corrupted one of the greenest states in America |
Guest Column |
|
Albert Kaufman |
Our Democrat Representatives in Action - What's on your wish list? |
Kari Chisholm |
|
Guest Column |
|
Kari Chisholm |
|
connect with blueoregon
May 22, '05
Excellent reminder on the need for protecting public land, especially given the assault today on SB100's land use guidelines.
I remember when Tom McCall did his famous helicopter fly-in at Cannon Beach in 1967. I wish we had more leaders like that, ones who know how to focus the public in on an issue and make things happen.
Thanks for a good read.
May 23, '05
Right on! Couldn't have said it better myself. The average Oregonian better wake up or lose their rights to responsibly float and wade our rivers. Our beaches could be next.
May 23, '05
I totally agree with you. It is not only the Oregonians that have to worry about our rights being taken away it is every American. Keep up the good work.
May 23, '05
There's an on-going multi-state effort to limit public access to public resources like rivers and streams. Companies like Coors support outfits like the mountain states legal foundation .
Apparently, rich people want to own spectacular properties and as part of their property rights, they want to be able to keep out the poor riff-raff who want to use the streams and rivers that cross their land. This view of property and of overlapping land regulation starts to get pretty close to feudalism . Note that the "federal access to land" that the MSLF talks about is invariably the right of companies to come in and exploit the natural resources on those lands. These same types want the unfettered ability to do anything they want on "their" land.
So next time you go fishing, take a different beer than Coors. It isn't the beer of any fishermen I know.
May 23, '05
Thanks for your comments Russell!
That "The Legislature's obsession with giving away public access is like the Energizer Bunny. It just keeps going and going and going." Hits this issue on the head!
May 23, '05
Thanks for speaking out on behalf of all Oregonians. We must not allow the denial of citizen's rights to become commonplace events. Oregon's rivers must remain "Forever Free"!
May 23, '05
SB 1028: It is a mystery indeed, how Senator Brown, the leader of the Democratic Party in the Senate, and Senator Ferrioli could join forces to privatize Oregon's public rivers---the same rivers that were granted to "we the people" of Oregon when we became a state, to be held in TRUST for us, and to be "forever free". The intent was most certainly not to allow the conversion of our public rivers into private rivers for landowners to exlude us all. SB 1028 is a breach of the Public Trust that must NOT be allowed to become law.
May 23, '05
Until 1973, when the house Agriculture Committee quietly repealed it, Oregon law guranteed everyone with a fishing, hunting, or trapping license the right to stand on the bed and banks of a stream to pursue those activities.
In 1924, the people of Oregon amended the State constitution granting the state the power over eminent domain over all waterways. In 1927, the Legislature declared all waterways except Lake Oswego, navigable and public highways.
In 1940 the U.S. Supreme Court ruled that once a stream is deemed navigable, no legal authorty has the power to reverse the declaration.
This only gets better and better, or worse and worse depending on the side you're on. Twice, Ferrioli introduced legislation to require the state file quit claim on all submerged and subermersible lands in the state.
May 23, '05
Thank you so much for writing this piece. I've testified twice now against SB1028. I've been trying to get the issue into the media and the public eye. Thank you so much for letting all Oregonians know what they are about to loose.
The similarities between this legislative battle and the Beach Law are tremendous. All the early beach law battles tended to languish in obscurity until a few key reporters finally started writing about it every couple of days. Those reporters helped lay the framework so that McCall could then lead an informed and angry public to make the changes that created our great public beaches.
We already have legal precedent and lots of rights to our rivers. We're about to loose those in the back rooms of Salem committees if we don't pay attention. Thanks for reporting on this one.
Keep Oregon Rivers Forever Free!
4:42 p.m.
May 24, '05
Heather,
Those reporters were my mentors. I learned the Beach Bill issues from them. I was one of the reporters who helped Sen. Betty Browne explain what Rep. Bob Smith was trying to do in 1971-73.
Shannon,
Kate Brown, whom I respect, is speaking for the State Land Board -- the Governor, Secrectary of State and State Treasurer -- Democrats all -- who simply do not want to spend the time, money and political capital necessary to contionue the job to legally determining navigability of Oregon's rivers and streams.
It IS a complex process and has nothing to do with ships. A river is navigable if it was susceptable of carry commerce in 1859 -- the year Oregon became a state. That requires a lot fo research. For example some rivers were suceptible of commerce because loggers built temporary dams, filled the water behind them with logs, blew the dams up with dynamite and the logs moved downs tream to mills on the surge of water. It was called splash dam logging and was used to Oregon rivers that never saw a ship or canoe until the invention of drift boats.
The Land Board has simply decided to quite establishing public access rights in the future -- ending the issue. That means any future access will have to be determined by the Legislature in some form of negotiation with "private" property owners wqho will certainly demand "compensation." Sound familiar?
Oregonian's will then have to pay to gain access they may have had since statehood if elected officials had done their jobs and made the effort to establish the navigability that determines public access rights.
The Ds on the Land Board just don't want to do their jobs.
Any of these bills are bad policy and any compromise just compromises away public access rights we have had since statehood.
Be wary.
May 31, '05
MEETING ANNOUNCEMENT
Are We Starting to Privatize Oregon’s Rivers?
Come to an informational meeting 6pm June 1st
WHEN: 6pm – 7:30pm, Wednesday June 1st, 2005
WHERE: Ecotrust Building, - 2nd Floor, Billy Frank, Jr. Conference Center
The Jean Vollum Natural Capitol Center, 721 NW 9th Ave. -Portland, OR 97209
In the 2005 Legislative Session several bills propose a new regulatory system for the rivers of the State. Our river recreation, travel, and commerce could be “limited,” “restricted” or even “excluded” according to the language of Oregon Senate Bill 1028. This regulatory scheme threatens constant erosion of our river rights and may start us down the path to privatization of Oregon’s rivers. A companion bill, SB 1066, attempts to undermine the navigability determination process and make it much more difficult for the State to confirm its title to our navigable rivers.
From statehood in 1859, we, all the people, have had broad rights to use Oregon’s rivers. When Oregon became a state, it was granted title to all tidal and navigable rivers, including their beds and banks. Is this the legislative session where we abandon our broad rights to use Oregon’s rivers? Give up the State’s rights of ownership of our rivers?
You wouldn’t let them take away your beaches; don’t let them take away your rivers!
·Find out about these bills’ potentially devastating effects on your existing rights to use Oregon’s rivers.
*Find out what you and your organization can do to protect rights, public use, state ownership, governance, and stewardship of our rivers.
RSVP : Heather McNeill, e-mail: [email protected]
Bryan Gooch Redd, e-mail: [email protected]
This meeting is co-hosted by two concerned citizens—who are not representing any corporation, association, organization or other group, and are not being paid—but who have testified against SB 1028 and are closely following this issue.
“All the navigable waters of the state shall be common highways and….forever free.” 1859 Oregon Admissions Act
Jun 1, '05
Thank you for commenting on this important issue. I hope you will keep up the commentary, Oregon river rights need a public voice. Two related sites of interest are www.westfly.com/cgi-bin/forum/Ultimate.cgi and the brand new www.oregonriverrights.com.
KEEP OREGON RIVERS FOREVER FREE!!
Jun 17, '05
Don't forget to check this out...
oregonriverrights.com